This Article demonstrates that merit selection is functioning
commendably in Arizona and, for the most part, provides the public with
a judicial selection process far more informative and generally superior
to "traditional elections." (1) Part I of this Article
sketches the history of Arizona's merit selection of judges and its
previous state-wide judicial election system. Part II discusses and
analyzes attacks on merit selection and, in addition, assesses the
effect of the Judicial Performance Review program initiated in 1992 to
enhance the efficacy of the merit selection system. Finally, largely
through extensive interviews of many participants in Arizona's
merit selection system, Part III describes the current status of merit
selection in Arizona and offers some fresh perspectives on the value of
merit selection, with suggestions to assure its preservation in Arizona
and its implementation elsewhere. The Article concludes that merit
selection, while not a perfect system, is operating commendably and has
significant advantages over a system of traditional, partisan or
non-partisan elections.

I. BRIEF HISTORY OF JUDICIAL ELECTION AND SELECTION IN ARIZONA

A. Judicial Appointments and Elections Before Merit Selection

Before the implementation of the merit selection system, (2) voters
elected judges for limited terms. Vacancies in office prior to
election--whether by death, retirement, or the creation of new
judgeships--were temporarily filled until the next general election by
gubernatorial appointment. (3) In practice, however, vacancies were
filled far more often by these appointments than by popular election. In
1973, sixty-two percent of the sitting Superior Court (4) judges were
first appointed--twelve of the previous thirteen judges appointed in
Maricopa County were appointed by the governor. (5) Gubernatorial
appointments were not subject to senate confirmation or any other checks
and balances. (6) Nevertheless, an overwhelming majority of all judges
were gubernatorial appointees who remained on the bench. From 1958 to
1972, over one-half of the candidates had no challenger on the ballot,
and two-thirds of those who did won their contest. (7) Of the six
defeated judges during that same period, three gained reappointment and
a fourth was subsequently reelected to an appellate court. (8)

Superior Court judges were elected for terms of four years.
Appellate court judges (9) were elected for terms of six years. (10)
Although judicial elections were statutorily declared
"non-partisan" because political party affiliation was not
indicated on the ballot, candidates' names usually reached the
ballot through party primaries. (11) While ethical restraints generally
prevented judicial candidates from campaigning with respect to specific
issues, many nonetheless ran on platforms supporting longer sentences
and harsher treatment of criminal offenders; this despite the fact that
most or all of their post-election judicial service would be devoted to
non-criminal matters. (12)

The reality of judicial politics forced most observers to
acknowledge that typical voters were unaware of the candidates, the
issues, or even the existence of contested judicial races. (13)
Campaigning proved cost-prohibitive for judges who made meager salaries.
In metropolitan areas, challenged incumbent judges were assigned
newsworthy cases in order to increase their exposure in the news media.
(14) Incumbent judges had additional practical advantages over
challengers: incumbents were identified in campaign advertising as
"Judge," and voters often had a tendency to vote to maintain
the status quo. (15) While political parties were permitted to support
various judges, the Republican party reportedly provided more help to
judicial candidates than the Democratic party provided. (16) From 1958
to 1972, the incumbent was defeated in only 10 out of 215 judicial
elections. (17) In other words, over ninety-five percent of the time,
the election did not change the composition of the bench. This may be in
large part due to reported voter indifference. In the 1972 Arizona
elections, although judicial races received more publicity than usual,
(18) only eighty percent of participating voters actually cast a ballot
in the contested state supreme court races. (19) By contrast, ninety-six
percent voted for President, ninety percent voted for State Tax
Commissioner, and eighty-seven percent voted for State Mining Inspector.
(20)

Public opinion polls also reflected voter indifference to judicial
elections. In 1972, one such poll showed sixty-five percent of voters
undecided about the state supreme court races, while only thirteen
percent were undecided about the presidential race and twelve to
twenty-five percent were undecided about the various elections for
United States Representatives. (21)

Prior to the implementation of the merit selection system, two
governors, Sam Goddard and Jack Williams, used an informal but
institutionalized system for electing judges through a committee of
lawyers from the Maricopa County Bar Association that made
recommendations for subsequent appointments. (22) Thus, prior to the
adoption of the merit selection system, some of the informal and
skeletal mechanisms of such a system were being used. The nominees,
however, lacked the same ethnic, gender and political diversity as those
selected after the voters' adoption of merit selection in 1974.
Nominees prior to 1974 tended to be younger and from large law firms.
(23) Furthermore, no committee ever seriously recommended a candidate to
the governor who was not of that governor's political party. (24)

B. The Birth and Evolution of the Merit Selection System in Arizona

As early as 1959, "a merit selection system was proposed in
Arizona as part of what ultimately became the 1960 Modern Courts
Amendment." (25) The proposal recommended the adoption of the
"Missouri Plan" (26) judicial appointment and retention
election system. (27) That November, the specific proposal relating to the merit selection of judges was deleted from the Modern Courts
Amendment. (28) Voters approved the remainder of the proposed amendment
in the 1960 election. (29)

Momentum for merit selection continued for several years. In 1965,
a State Bar survey indicated that almost two-thirds of responding
lawyers favored the appointment of judges. That same year, the State Bar
Convention hosted a debate over merit selection. In 1967, Governor Jack
Williams and Charles C. Bernstein, then Chief Justice of the Supreme
Court of Arizona, called a citizens' conference on Arizona courts.
(30) The conference resulted in a permanent organization called The
Citizens' Association on Arizona Courts, (31) whose primary goal
was the establishment of a system for the merit selection of judges.
(32) When its first attempts to pass a referendum for a constitutional
amendment providing for merit selection legislation proved unsuccessful,
the Association went to the people for an initiative measure. In 1974,
it gained enough support to be put on the general ballot. (33)

While state and local bar associations and lawyers generally raised
much of the money to finance the initiative campaign, the Association
provided the leadership and public face of the campaign. Merit selection
carried in the election by a vote of 253,756 to 217,709 and out of ten
initiative measures, it was one of four that passed. (34)

The 1974 constitutional amendment applied to the selection of
superior court judges in counties with a population of 150,000 or more
(35) and the selection of all appellate judges throughout the state.
(36) The amendment provided for the formation of three nominating
commissions--one each for Maricopa and Pima County trial judges, and one
for all appellate judges. (37) Each commission consisted of five
non-lawyer members selected by the Governor and approved by the Senate,
and three attorney members selected by the State Bar and also appointed
by the Governor with the Senate's approval. No more than three of
the non-lawyer members and two of the lawyer members were permitted to
be from the same political party. (38) For the appellate nominating
commission, no more than two non-lawyer and two lawyer members could be
from the same county. (39) All members served staggered four-year terms.
The Chief Justice of the Supreme Court of Arizona presides over at least
one of the three commissions and, in practice, votes to break a tie.
(40)

The first selections under the new system filled two new vacancies
on the Pima County Superior Court. Legal journals and newspaper articles
declared the selections a great success. (41) Although both selections
were Democrats appointed by a Democratic Governor, the press noted that
the fact that both appointees were from the same political party as the
Governor "in no way detracts from their qualifications to survive
on the bench," citing as evidence the "critical screening
process established by a bipartisan committee" each underwent prior
to appointment. (42) According to one journalist, "the screening
process in Pima County and the selection of [the appointed judges] ...
has proved that the new system can work to the advantage of the
public." (43)

The initial selections in the first two years of the merit
selection system show the caliber of judges such a system recognizes.
The selections included Justice Frank X. Gordon, Jr., to the Supreme
Court; Judge Mary M. Schroeder to the Court of Appeals (now Chief Judge
of the United States Court of Appeals for the Ninth Circuit), and Judge
James Richmond to the Court of Appeals. (44) Other selections included
Judges Robert Corcoran, I. Sylvan Brown, James Moeller, Stanley
Goodfarb, and Val A. Cordova to the Maricopa County Superior Court, and
Judges Harry Gin, Jack T. Arnold, Gilbert Veliz Jr., and James C.
Carruth to the Pima County Superior Court. (45) A few years later, as
the result of merit selection, Judge Sandra Day O'Connor was
appointed to the Arizona Court of Appeals, where she served until she
was confirmed as a Justice on the Supreme Court of the United States.

Arizona Supreme Court Chief Justice James Duke Cameron, who
presided over the first selection commissions, reported that politics
played little part in the selection process. He declared in a 1976
journal article that "It]here has been no hint of political
influence in the selection process," and suspected "that the
Governor has been as surprised as the public at some of the names
recommended, as well as at some not recommended." (46) He also
noted that the selection process encourages those who, though qualified,
would not have attempted to seek judicial office under the election
system. (47) The Chief Justice concluded that, as a result, "merit
selection bodes well for the quality of Arizona's judicial
system." (48)

No judge was voted out of office in the 1976 judicial retention
election. (49) This trend continued with rare interruption in the
subsequent years, following the tendency of states that employ merit
selection. Generally, more than ninety-seven percent of judges seeking
retention in any election year succeed. (50) Indeed, one newspaper
reported that, from 1974 until 1998, only two Arizona judges had been
defeated in a retention election. (51)

II. 1992 CHANGES TO MERIT SELECTION SYSTEM AND JUDICIAL PERFORMANCE
REVIEW, AND RECENT ATTACKS ON THE SYSTEM

A. 1992's Antidote for the Alleged Problem of
"Unaccountability" Attributed to Merit Selection

The merit selection system did not undergo any legislative or
citizen initiative changes until the passage of Proposition 109 in 1992.
(52) The measure proposed by the legislature was ultimately approved by
fifty-eight percent of Arizona voters. (53) Proposition 109 created
public committees to screen and recommend candidates for appointment to
Arizona's judicial nominating commissions and increased the number
of lawyer and non-lawyer members of the commissions. It also required
consideration of the diversity of the state or county's population
in selecting commission members and nominating judicial candidates for
the Governor's deliberation. In addition, Proposition 109 raised
the population cutoff that triggers the applicability of merit selection
from 150,000 to 250,000. Perhaps most significantly, the Proposition
required the Supreme Court to adopt, after public hearings, a process
for evaluating judicial performance. (54) Arizona is the only state in
the country to have constitutionally mandated performance reviews.

The entity created by the constitutional mandate is known as the
Commission on Judicial Performance Review ("JPR Commission"),
currently composed of thirty members, each serving four-year terms. (55)
These members are appointed by the Supreme Court. The members may be
judges, attorneys, members of the public and legislators. Legislators
are non-voting members serving in an "advisory" capacity. (56)
However, a "majority" of the JPR Commission must be
non-attorneys, and in no event may there be more than six attorneys and
six judges on the JPR Commission. (57)

The JPR Commission is responsible for developing performance
standards and thresholds, and conducting performance reviews of justices
and judges who are appointed pursuant to merit selection. (58) It
surveys the opinions of persons who have knowledge of the judges'
performance (jurors, attorneys, litigants, witnesses, and court staff)
and provides additional opportunities for the public to participate in
the evaluation process through public input and written comments. (59)
Evaluation results are widely distributed throughout the state via media
reports and the voter information pamphlet compiled by the Secretary of
State and mailed to all voters' households prior to general
elections. The JPR Commission also conducts an ongoing self-improvement
program for judges and justices, which includes the collection of
additional information from the judges themselves and from others having
knowledge of the judge or justice's performance. (60) This
information is reviewed with the individual judge or justice by teams
established by the JPR Commission composed of a volunteer public member,
attorney member, and judge. The team then identifies areas where the
judges or justices could improve their performance and educate each
individual by virtue of their performance and experience. (61)

The provision of Judicial Performance Review that drew the most
criticism was Rule 6(C), (62) which provides that the anonymous
narrative comments on the survey forms are confidential and are to be
used only in connection with the conference team meeting and the related
preparation of the self-improvement plan. (63) By making the comments
anonymous, the Supreme Court attempted to resolve the tension between
encouraging candor and ensuring that inaccurate or irresponsible
comments by individuals with malicious motives would not publicly
discredit judges who must, because of their position, almost always
decide "against" at least one party. (64)

The Judicial Performance Review process is intended primarily to
generate the information necessary to enable the public to make informed
decisions about whether to retain the judges subject to performance
review. (65) The degree to which the process has achieved this objective
is the subject of continuing debate. Moreover, Judicial Performance
Review has not been universally applauded and is, and has been, the
subject of anecdotal criticism by several members of the judiciary.
While the initial concern focused on the evaluation's threat to
judicial accountability, today many judges complain that the evaluation
does not yield reliable results and, therefore, is the basis for
questionable if not quixotic reviews. Because judicial performance
review is mandated by the constitution in Arizona, the immediate
challenge facing those determined to preserve the merit selection system
is to improve and enhance the reliability, dissemination, utilization
and acceptance of judicial performance review by the judiciary and the
public.

B. Recent Challenges to Merit Selection in Arizona

Although no changes have been made to merit selection since the
1992 reforms, the system has been attacked frequently in the last
several years. The greatest flurry of bills introduced occurred between
2003 and 2005, when in the 46th and 47th legislatures, over nineteen
bills were introduced that proposed to eliminate or undermine merit
selection in one way or another. Several of these bills proposed
changing the population cutoff from 250,000 per county, to between
400,000 and 600,000 per county. (66) Other bills proposed more
substantial changes, ranging from eliminating merit selection altogether
and returning to election of all judges (67) to a variety of less
fundamental changes, such as:

Requiring the election of all trial court judges; (68)

Requiring Senate Confirmation of all justices and judges; (69)

Eliminating Nominating Commissions and requiring the Governor to
appoint judges to vacancies with Senate confirmation, and requiring
justices and judges to be reconfirmed by the Senate every four years;
(70)

Requiring that the chairperson of the three Nominating Commissions
be the Chairperson of the Senate Judiciary Committee, as a non-voting
member; (71)

Changing the membership of the Nominating Commissions to make the
Chief Justice a non-voting member, allowing only one attorney member to
be appointed by the Governor, and requiring that two of the attorney
members be appointed by the President of the Senate, and two by the
Speaker of the House; (72)

Requiring judges and justices to receive a 'yes' vote of
at least 60 percent to remain in office in a judicial retention
election, (73) requiring member attorneys of the commissions to be
confirmed by the Senate. (74)

On several occasions, then-Chief Justice Charles E. Jones appeared
before the Judiciary Committee to testify in opposition to these
measures, all of which he believed to share a theme of injecting
politics into the judiciary and the judicial selection process. (75) In
testifying against H.R. Con. Res. 2386, which required all Superior
Court judges to be elected, Chief Justice Jones stressed that such
measures undermined separation of powers, judicial independence, and the
ability of courts to render justice equally. (76) Chief Justice Jones
considered the proposal a threat to judicial independence and the
appearance of impartiality. (77) He illustrated what a non-merit system
might look like today by citing the then-recent three to five million
dollar campaign price tag for the election of the Chief Justice of the
Texas Supreme Court. (78) He showed legislators what he considered a
demeaning television advertisement that had been used in the campaign
for a position on the Ohio Supreme Court. (79) Chief Justice Jones also
cited Brown v. Board of Education (80) as a decision that in its day
surely would have resulted in the ouster of the Justices deciding that
case had they been subject to a political process through traditional
elections. (81)

Interested parties on the other side of the debate included, among
others, the Center for Arizona Policy, a non-profit organization dedicated to "strengthening the family and restoring traditional
moral principles to the public policy and cultural arenas," and
"battl[ing] organizations like Planned Parenthood, the ACLU and gay
rights groups that seek to destroy traditional families and traditional
moral values." (82) The Director of Policy of this organization,
Cathi Herrod, testified in support of H.R. Con. Res. 2056, which would
have eliminated the nominating commissions and would have required the
Governor to appoint judges and justices with Senate confirmation. (83)
She testified that the merit system resulted in increased judicial
activism, less legislative oversight and "no accountability."
(84)

One possible motivation for the flurry of challenges to merit
selection in the 46th and 47th legislatures was the decision of the
Supreme Court of Arizona in Bennett v. Napolitano, where the Court
declined to grant relief to several legislators who challenged the
Governor's line item vetoes because the legislators lacked
standing. (85) Indeed, one legislator referred to this decision in
not-so-veiled terms while then Chief Justice Jones was testifying before
the Judicial Committee on H.R. Con. Res. 2386. (86) Senator Graft called
the decision "judicial activism" and noted that the
legislature had "tried passing a budget last year" and the
Executive Branch "tr[ied] to change the rules." (87) He added
that one "would think that the courts would have supported the
legislative body in the role as the appropriator, and yet that did not
happen." (88)

The efforts to undermine or eliminate the appointive system
continue unabated in Arizona because special interests have apparently
concluded that those interests are not best served by independent,
impartial judges. Thus, the ongoing challenge for Arizonans like Justice
Sandra Day O'Connor who passionately believe in the singular
importance of an impartial and independent judiciary, is to persuade the
majority of our fellow citizens to share that passion and to the extent
necessary, effect changes in the current appointive system to ensure its
endurance. (89)

III. THE STATE OF MERIT SELECTION IN ARIZONA: SOME PRAISE, AND SOME
SUGGESTIONS FOR ITS PRESERVATION

This Part describes the merit selection process, as amended and
refined, in some detail. It does so in order to show the reader that the
quality and quantity of information produced and disseminated by the
merit selection system, including judicial performance review, is far
superior to anything provided to voters in a traditional election
system. As the following demonstrates, not only the public but also the
judges receive in-depth, objective evaluations completely lacking in
traditional elections.

1. The Public Learns More Pertinent Information from the Current
Selection Process than from Traditional Elections

Arizona's merit selection process employs detailed, vetted
applications, due diligence, and personal interviews. (90) Applicants
customarily undergo this process of detailed scrutiny shortly after
submitting their applications. The application is quite thorough, and
the application format is subject to public comment. (91) The
application includes eighty-six detailed questions covering the
applicant's professional experience, business and financial
information, conduct and ethics, professional and public service, as
well as a request for numerous references. One illustrative question
asks the applicant to list the five or six most important cases on which
he or she has worked. (92) The substantive portion of the
candidate's application is open to the public. (93)

Once applications have been received and processed, individual
Judicial Nominating Commission ("JNC") members perform
"due diligence" on the applicant. This process includes
checking references, asking persons who know the applicant to comment on
the applicant, and reading pertinent documents. (94) During this
process, the JNC often receives unsolicited comments, some good, some
bad, from persons with knowledge of the applicant's qualifications.
(95)

The most meritorious applicants, or all of the applicants if the
number of applicants is relatively small, are interviewed personally by
the entire JNC. These interviews, which typically last a half-hour to
one hour, are open to the public. Public comment is invited and can be
heard throughout the process. (96)

The JNC then votes publicly to recommend at least three candidates
to the governor, who is required to choose from this list. (97) The
governor's choices are diverse, not only because the Arizona
Constitution explicitly requires consideration of diversity in the
JNC's recommendations, but also because the candidates must
represent different political parties. (98) As a Commissioner has noted,
one of the JNC's "finest selectees was John Buttrick who was a
Libertarian, had run against the then-sitting governor, and was
appointed by that governor to a judgeship." (99)

After the governor deliberates, he or she appoints one of the
nominees from the JNC's list. Because the JNC has completed an
exhaustive inquiry, however, the governor presumably "can have a
blindfold on, she could reach into the jar, and she could pull out a
name, and whoever she pulls out would serve on the court ably."
(100)

2. The Public Receives Even More Pertinent Information Through the
Ongoing Judicial Performance Review Process

The Commission on Judicial Performance Review, as noted above, is a
public entity charged with evaluating and educating judges through
extensive surveys, reports, and conference teams. (101) It is the
largest of its kind in the country. (102) The JPR Commission reflects
wide diversity; it is comprised mostly of public members, but it also
has judges, attorneys, and legislators. (103) To the extent possible,
the JPR Commission members also must reflect the diversity of the
state's population. (104)

In conducting its evaluations, the JPR Commission surveys virtually
everyone who has interacted with the judge in his or her duties,
including lawyers and judges' staff, and, where applicable,
litigants, jurors, and witnesses. (105) The participants answer
questions regarding legal ability, communication skills, judicial
temperament, settlement activities, and administrative performance.
(106) They must rate the judge on a scale of unacceptable, poor,
satisfactory, very good, superior, or "can't rate," for
each of the questions. (107) The questions vary by participant; for
example, attorneys answer somewhat different questions than litigants.
(108) Although many of the questions are redundant, redundancy seems
preferable to under-inclusiveness. (109) Thus, the JPR Commission
gathers a wealth of pertinent information about every judge subject to
judicial performance review.

The JPR Commission achieved a landmark in 1998 when it received the
funds required to place its evaluations in the voter publicity pamphlet,
which is mailed to every eligible retention voter. (110) As a result,
after the survey results have been collected and summarized and the JPR
Commission has voted publicly on the judges up for retention, the voters
receive a concise report on each judge in the mail. (111) Voters also
can search the JPR Commission's detailed website. (112) The site
explains judicial performance review and offers additional reports and
information on the judges. Finally, on the ballot, the voters see
whether the JPR Commission has voted that the judge "meets" or
"does not meet" review standards.

This wealth of carefully compiled statistical information stands in
stark contrast to the information generally available in traditional
elections, in which candidates attack each other using sound-bites or
give the voters biased, laudatory self-assessments. Elections rarely
offer objective information, and certainly nothing that is actually
tracked and quantified with the detail and consistency of the
information gathered by the JPR Commission. (113) Regardless of the
nature of the information, however, the quantity of applicable
information available to the electorate is far less in traditional
elections because independent, diverse, bipartisan commissions do not
assess and reassess the candidates and incumbents. Furthermore, judicial
performance review evaluations enable voters to make decisions on the
basis of "'the commonly held value of a competent independent
judiciary, rather than on partisanship or ideology.'" (114)

3. Judges Receive More Pertinent Information on Their Performance

The voters are not the only beneficiaries of judicial performance
review. In addition to the information judges receive through the
surveys and JPR Commission voting process, judges receive individualized evaluations through conference teams. (115) The conference team process
requires the judge to complete a self-evaluation. Once complete, the
teams meet with each judge annually and review his or her survey results
and self-evaluation. The judge and team develop a self-improvement plan
for the judge. The plan is distributed to the judge's chief or
presiding judge and the Chief Justice of the Supreme Court of Arizona.
(116) Judges agree that this process is invaluable to the improvement of
their judicial performance. (117) Few, if any, elected officials in
Arizona receive anything close to this type of tailored performance
evaluation; the state legislators who denounce the merit selection
system certainly do not have any system for the evaluation of their
performance as legislators.

B. Some Fresh Answers to Accountability Concerns

As the preceding discussion demonstrates, judicial performance
review and retention elections assure that judges are more accountable
than most public officials. Judges are accountable to the Commission on
Judicial Conduct, a public body that investigates and disciplines judges
for conduct prohibited by the Code of Judicial Conduct. (118) In
addition, judges are further constrained because most of their decisions
are subject to appellate review. Finally, the merit selection system,
including judicial performance review, places judges among the most
highly accountable public officials in the State of Arizona. As one
respected judge observed, "[s]ome second graders have more
freedom." (119)

As explained above, the selection process is almost entirely
transparent, exacting, and virtually devoid of political influence.
(120) No one seriously claims otherwise. (121) Also as explained above,
the judicial performance review process is an ongoing and searching
inquiry that rates the judge on virtually all of his or her
courtroom-related interactions. (122) The judge receives frequent,
direct and indirect feedback through the conference teams and survey
results. Those interviewed with experience in the system believed that
judges view their performance reviews seriously and apprehensively.
(123) Both the judicial performance reviews and selection process are
public; the former even places the judges' ratings on the retention
ballot and mails the detailed survey reports to every household in the
applicable counties. (124) Furthermore, it should not be forgotten that
judges do face frequent public elections for their retention. (125) In
comparison to other public officials, then, judges in Arizona are more
accountable to the public than elected officials. This is particularly
true in terms of the ability of the electorate to assess, thoroughly and
objectively, the judge's qualifications and performance.

Nevertheless, critics continue to attack merit selection because of
the alleged "unaccountability" of the judiciary. To be sure,
merit selection offers less direct democracy than pure elections
(assuming, among other things, that the elected judge would be subject
to reelection as frequently as the current retention elections). (126)
Though judges face retention elections, critics frequently denounce
judicial performance review and retention elections as a "rubber
stamp" by citing the facts that (1) the JPR Commission has never
concluded that a judge does not meet standards, (127) and (2) voters
rarely do not retain a judge. (128) Both criticisms are misguided, but
not just for the reason commonly given by merit selection proponents.
(129)

With respect to the first criticism, the JPR Commission has
predetermined that a few judges would not meet the standards. Rather
than face the public humiliation of such a rating on the ballot and in
the voter publicity pamphlet, these affected judges chose to retire.
(130) No one wants to be the first "bad apple" on
Arizona's fine bench. (131)

With respect to the second, it suffers from at least two flaws.
First, while it is true that in Arizona only two judges have been voted
out of office in retention elections, an increasing number of judges in
other states have not been retained. (132) Furthermore, recent campaigns
in Arizona against unpopular judges did lower their voter approval.
(133) Moreover, when the JPR Commission casts significantly mixed votes
on whether the judge meets standards, this also lowers voter approval to
some extent. (134)

Second, the criticism presumes that elected judges would be
replaced, which was not Arizona's experience prior to merit
selection. (135) Not only were incumbent judges rarely defeated, they
were more often appointed than elected in the first place. (136) The
public is relatively uninterested in judicial elections, regular or
retention. (137) Practically speaking, now the public is assured that
Arizona has long-serving judges (less mandatory retirement) who have
demonstrated merit. In sum, without regard to the superior scores of
judges on their frequent, in-depth evaluations, accountability concerns
are misplaced.

We address another common concern in passing--the claim that the
judicial performance review process does not involve the public. Though
state legislators are often the outspoken source of this criticism, they
almost never attend the JPR Commission's public meetings, even at
the Commission's invitation. (138) More importantly, the public is
"involved in the evaluation process as commission members and as
respondents to evaluation surveys." (139)

Therefore, from beginning to end, the merit selection process,
including judicial performance review, does involve the public, to which
the judges are ultimately accountable.

C. Merit Selection Going Forward

Whatever one's criticisms of merit selection and judicial
performance review, one fact is clear: the participants who interact
with Arizona's judges, including witnesses, judges' staff, and
attorneys, rank them very highly. Of the total number of persons who
completed JPR surveys regarding Maricopa and Pima County Superior Court
judges, (140) over eighty percent ranked the judges "very
good" to "superior." In contrast, of the same group, less
than five percent ranked the Maricopa and Pima County judges
"poor" or "unsatisfactory." (141) The numbers are
similar for appellate judges. (142)

Interestingly, one Arizona legislator who has co-sponsored
legislation that would weaken merit selection in Arizona actually
reviewed the JPR data (an uncommon exercise among legislators). He
concluded that the Arizona judiciary is performing extremely well, both
on individual levels and as a whole. (143) His interest in the data
stemmed from his background in engineering and personal interest in
organizational and group performance, which he says always informs the
bills that he sponsors. (144) After reviewing the JPR data, this
legislator's views on merit selection are "in transit,"
because, according to him: "if the great majority of individual
judges are performing from 'very good' to
'excellent' [under merit selection], why leave that system for
Senate confirmation, which is hardly a charmed system, if the federal
experience tells us anything." (145) Moreover, this same legislator
asked Senate analysts to compare the "unit cost" for an
Arizona appellate matter to the California unit cost, and found that the
Arizona unit cost of an appellate matter is forty percent lower than the
unit cost of a California appellate matter. (146) Overall then, this
legislator is beginning to believe that retention elections create
"enough" tension to ensure judges' "good
behavior," if nothing else because no judge wants to be one of the
first not retained in Arizona. Nonetheless, he remains ambivalent about
merit selection.

Other legislators, however, are firmly convinced that elections
would be preferable. (147) Some special interest groups, recognizing
that elections can create the appearance that a judge can be
"bought," advocate for a modified federal system in which the
governor appoints, and the Senate confirms, Arizona judges for life.
(148) Cathi Herrod, supports such a system, (149) and has testified
before the Judiciary Committee to advocate for it. (150) She believes
that because Arizona judges are inclined to "make law rather than
interpret the law," this system is a necessary and overdue change
to Arizona's judiciary. (151)

While acknowledging that merit selection "vets
competency" in judges, Ms. Herrod emphasizes that it is an
inadequate system to test "judicial philosophy" and hold
judges accountable for judicial activism. (152) Commenting on
"nobadjudges.com," a three-week, $25,000 campaign against
certain judges (i.e. an anti-retention campaign), Ms. Herrod noted that
the campaign "was enough to send a little bit of shock waves."
(153) Those judges' retention scores decreased by an estimated six
to seven percent. (154) She is optimistic that such efforts may one day
succeed because "the minute a judge is not retained, then the
public really understands that they can vote a judge out. I mean, all
it's going to take, in a sense, is one scalp, so to speak."
(155)

Merit selection in Arizona will continue to be debated, and efforts
to undermine, or undo it, will persist. To defend against these efforts,
the work of the Judicial Nominating Commissions must continue to
prioritize placing the best-qualified individuals on the bench, and
accomplish this in a manner that continues to be transparent but more
effectively and pervasively publicized. If Arizonans had more
information about how the JNC and the JPR Commission function, they
would be less likely to accept the arguments of those opposed to merit
selection. (156) Efforts must be made to publicize and explain the
purpose and work of the Judicial Nominating Commission as well as the
purpose, work, and work-product of the JPR Commission. While the
dissemination of the Voter Publicity Pamphlet to all registered voters
is a good start, it is not enough to neutralize the unwarranted concerns
about the "accountability" of the judiciary. The interviews
conducted by the authors, especially of those people opposed to merit
selection, confirm the widespread and basic misunderstanding about the
role and function of judges in our society. Those opposed to merit
selection not only fail to understand that merit selection and judicial
performance review provide far more "accountability" than
traditional, contested elections, many of them mistakenly believe that
judges should be ideologically accountable to the electorate like
members of the legislative and executive branches of government. (157)

Addressing these misconceptions will require more than increased
public understanding about merit selection and judicial performance
review. This effort will require a renewed and expanded focus in public
education about the distinct role of the judiciary in our form of
government. If judges are to be independent and impartial in their
decision-making, they cannot be appointed and retained on the basis of
their ideological accountability. Understanding this basic principle
will require pedagogy which starts in primary school and continues
through secondary school. It will require the involvement and support of
educators, the judiciary, other elected officials, citizen groups
interested in good government, the media and ultimately, the public. It
will require the expenditure of substantial public funds and public
commitment. The preservation of an independent judiciary, however, is
clearly worth the effort.

IV. CONCLUSION

While not a perfect system, merit selection is functioning
commendably and has significant advantages over a system of traditional
partisan or non-partisan elections. The public, however, is
insufficiently aware of these advantages and is generally unfamiliar
with the work and work-product of Judicial Nominating Commissions as
well as the detailed information generated and compiled through judicial
performance review--the "accountability mechanism" for judges
first appointed by merit selection and thereafter subject to retention
election. Of perhaps greater concern, many elected officials and members
of the public simply do not understand the role and function of judges
in our system of government and mistakenly believe that judges should be
ideologically accountable rather than impartial and independent. If
fully apprised of the virtues of merit selection and the judicial
performance review process (including the wealth of information
generated by the process), the public and elected officials would
appreciate the value and superiority of merit selection and judicial
performance review over traditional elections. (158) The challenge going
forward, then, is to create pervasive and more meaningful public
awareness and understanding about merit selection and the judicial
performance review process, (159) and equally important, the role of
impartial, independent judges in American society.

(1.) Throughout this article, the phrase "traditional
elections" is used as a shorthand term for contested partisan and
non-partisan public elections as opposed to retention elections in which
voters are asked only whether the (unopposed) candidate should be
retained in office.

(2.) "Merit selection" refers generally to the system in
which judicial candidates are screened and selected on the basis of
merit, typically by a diverse group of citizens, including lawyers, and
proposed to the appointing authority, typically the governor, for
appointment.

(9.) This includes both the Arizona Court of Appeals and the
Supreme Court of Arizona.

(10.) Lee, supra note 3, at 53.

(11.) Id. at 53-54.

(12.) Id. at 54-55.

(13.) Id. at 55.

(14.) Id.

(15.) Id. at 56.

(16.) Id. at 55-56.

(17.) Id. at 57.

(18.) Judicial campaigns were undergoing greater public scrutiny as
a result of the proposed adoption of merit selection.

(19.) Lee, supra note 3, at 59.

(20.) Id.

(21.) See id. at 59 (citing ARIZ. REPUBLIC, Oct. 15, 1972, at A1).

(22.) Id.

(23.) Id.

(24.) Id. at 67.

(25.) John M. Roll, Merit Selection: The Arizona Experience, 22
ARIZ. ST. L.J. 837, 847 (1990). The "Modern Courts Amendment"
contemplated a complete reform and restructuring of the court system in
Arizona and, with the exception of the merit selection proposal, was
adopted intact and implemented by various legislative enactments over
the next fifteen years.

(26.) The "Missouri Plan" refers to the judicial merit
selection plan adopted in the State of Missouri--the first to adopt
merit selection in lieu of traditional election of judges. Roll, supra
note 25, at 843-44.

(27.) Id. at 847-48.

(28.) Id. at 848.

(29.) Id.

(30.) James Duke Cameron, Merit Selection in Arizona--The First Two
Years, 1976 ARIZ. ST. L.J. 425, 426. The conference was planned and
supported by the American Judicature Society, the National College of
State Trial Judges, and the State Bar of Arizona. Id.

(31.) Id.

(32.) Id. at 427.

(33.) Id. The League of Women Voters, Arizona Jaycees, Arizona
Judges' Association, and the State Bar helped to obtain 82,152
signatures--substantially more than the 61,711 required to put the
initiative on the ballot. Id.

(34.) Id.

(35.) Id. at 428. At the time, only Maricopa and Pima counties
qualified.

(55.) RULES OF PROCEDURE FOR JUDICIAL PERFORMANCE REVIEW IN THE
STATE OF ARIZONA 2(a), (c) (2006), available at
http://www.supreme.state.az.us/
jpr/Adopted%20Revised%20Rules%206-1-06.pdf [hereinafter ARIZ. R.P. JUD.
PERF. REV.].

(56.) Id. at 2(a). No legislators currently serve on the
Commission, and an informal Attorney General's opinion has
suggested that doing so could violate the prohibition against holding
two public offices. E-mail from Annette Corallo, Program Manager, Merit
Selection, to Mark Harrison (Sept. 14, 2006, 5:12 PM) (on file with
author) [hereinafter Corallo E-mail].

(57.) ARIZ. R.P. JUD. PERF. REV., supra note 55, at 2(a).

(58.) Id. at 2(g).

(59.) Id.

(60.) Id. at 4.

(61.) Id.

(62.) The rules governing the process were first promulgated by the
Supreme Court of Arizona pursuant to ARIZ. CONST. art. VI, [section] 42,
in May 26, 1993, following passage of the initiative measure, and have
been periodically amended since their initial adoption.

(73.) As previously discussed, retention elections refer generally
to those elections in which candidates run on their record and not
against an opponent. In such elections, voters are asked whether the
candidate should be retained in office. See supra note 1.

(89.) Former Arizona Chief Justice Jones is the Chair of Justice
for All, a 501(c)(3) organization founded last year to assure the
preservation of an impartial judiciary in Arizona. See Justice For All,
http://www.jfa.net/(last visited October 27, 2006). Former Supreme Court
Justice O'Connor supports Justice for All and has said

[s]election of judges according to the candidates' merit is,
naturally, key to ensuring that a judge will act impartially.
Considerations other than merit motivating a political actor to
appoint a judge (or voters to elect a judge) are likely to be the
very considerations that will prevent a judge from deciding cases
fairly and without bias.

Sandra Day O'Connor, Associate Justice, Supreme Court of the
United States, Remarks Before the Arab Judicial Forum, Manama, Bahr.:
The Importance of Judicial Independence (Sept. 15, 2003) (transcript
available at http://usinfo.state.gov/journals/
itdhr/0304/ijde/oconnor.htm).

(92.) Chief Justice McGregor noted that she has paid particularly
close attention to the types of cases that the applicant listed, which
revealed (among other things) the issues that the applicant found
important and the complexity of his or her previous experience.
Interview with Ruth McGregor, C.J., Chair, App. Ct. Nominating
Comm'n, in Phoenix, Ariz. (June 28, 2006) [hereinafter McGregor
Interview].

(96.) ARIZ. R.P. NOMINATING COMM'NS, supra note 90, at 8, 9
(allowing public comment following screening and interviews). That is
not to imply that the public actually participates, only that the public
has notice and opportunity to do so.

(97.) ARIZ. CONST. art. VI, [section] 37.

(98.) Specifically, no more than sixty percent of the nominees may
be from one political party. ARIZ. CONST. art. VI, [subsection] 36-37,
41. Indeed, since the inception of merit selection in Arizona, "the
governor has appointed a candidate from another political party 26
percent of the time." Ted A. Schmidt, Merit Selection of Judges:
Under Attack Without Merit, 42 ARIZ. ATT'Y 13, 17 (2006).

(99.) McGroder Interview, supra note 94, at 4.

(100.) Schade Interview, supra note 94, at 11-12. The governor
cannot decide on the basis of political affiliation, and must consider
the diversity of the state's population when making the decision.
ARIZ. CONST. art. VI, [section] 37(C).

(101.) As one author has noted, when compared with other
states' program goals, "Arizona's Rules of Procedure for
Judicial Performance Review give the most comprehensive statement of
commission goals." Seth S. Andersen, Judicial Retention Evaluation
Programs, 34 LOY. L.A. L. REV. 1375, 1379-80 (2001). The Rules list the
following goals:

assist voters in evaluating the performance of judges and justices
standing for retention; facilitate self-improvement of all judges
and justices subject to retention; promote appropriate judicial
assignments; assist in identifying needed judicial education
programs; and otherwise generally promote the goals of judicial
performance review, which are to protect judicial independence while
fostering public accountability of the judiciary.

Id. (quoting ARIZ. R.P. JUD. PERF. REV., supra note 55, at 1).

(102.) Id. at 1383.

(103.) ARIZ. R.P. JUD. PERF. REV., supra note 55, at 2(a). But see
supra note 56 (opining that legislators cannot serve because to do so
would violate the prohibition against holding two public offices).

(104.) ARIZ. R.P. JUD. PERF. REV., supra note 55, at 5(a).

(105.) See, e.g., Interview with Margaret Kenski, Chair,
Comm'n on Judicial Performance Review (July 17, 2006) ("I
think that our judges in Arizona undergo more scrutiny than they do
almost anyplace in the United States.") [hereinafter Kenski
Interview].

(111.) See JPR Archives, supra note 106 (providing example
reports). The Arizona Constitution requires some publicity. See ARIZ.
CONST. art. VI, [section] 42 ("The public shall be afforded a full
and fair opportunity for participation in the evaluation process through
public hearings, dissemination of evaluation reports to voters and any
other methods as the court deems advisable.").

(113.) These problems are separate from campaign contribution
problems. It is no wonder that "three out of four Americans believe
judicial campaigning compromises the impartiality of elected
judges." Schmidt, supra note 98, at 13. In one elective state,
Texas, forty-eight percent of judges "believed campaign
contributions have a 'significant' impact on judicial
decisions." Id. Moreover, perhaps in light of the
"mudslinging" that occurs in contested election systems,
"those most suited by intellect, education, and temperament were
often the least likely to politick for the job." Id. at 16.

(120.) This last statement--merit selection is devoid of political
influence--hinges on one's definition of politics. Broadly
speaking, the process is subject to political influence in the sense
that the Commissioners are influenced by the candidate's
recommendations, and approximately three-fourths of the time the
candidate is from the governor's political party. This occurs even
though the Arizona Constitution forbids the practice. ARIZ. CONST. art.
VI, [section] 37(C); see also Schmidt, supra note 98, at 17. If politics
are defined more narrowly, however, the statement holds true:
Interviewees generally agreed that the process lacks partisan influence
or favoritism. E.g., McGregor Interview, supra note 92; Schade
Interview, supra note 94; Interview with Cathi Herrod, Director of
Policy, Center for Ariz. Policy, in Phoenix, Ariz. (July 20, 2006)
[hereinafter Herrod Interview]; McGroder Interview, supra note 94.

(123.) Gaines Interview, supra note 117; McGregor Interview, supra
note 92; Kenski Interview, supra note 105. A few participants indicated
that some judges took the reviews more to heart than others, but none
observed a careless disregard of the implications or significance of
judicial performance review. Campbell Interview, supra note 109. But see
Interview with Marc Lieberman, Attorney Member, Comm'n on Judicial
Performance Review, in Scottsdale, Ariz. (July 5, 2006) (expressing
concern that, although most judges pay close attention to the
evaluations, a few judges appear indifferent to them) [hereinafter
Lieberman Interview].

(124.) See JPR Archives, supra note 106 (providing copies of
previous publicity pamphlets); Schmidt, supra note 98, at 17 ("This
complaint [that the public is removed from the process] no longer
resonates because the interviews, meetings, voting are open to the
public and even have been televised."); see also ARIZ. CONST. art.
VI, [section] 42 ("The public shall be afforded a full and fair
opportunity for participation in the evaluation process through public
hearings, dissemination of evaluation reports to voters and any other
methods as the court deems advisable.").

(125.) See, e.g., Schmidt, supra note 98, at 17. These retention
elections can be contentious. See, e.g., Andersen, supra note 101, at
1378-79 (noting campaign against retention of Tennessee and Nebraska
judges). Another benefit of judicial performance review is that it
provides the public with "independent, nonpolitical
evaluations" that could counterpoint unfair criticism of judges up
for retention. Id. at 1379.

(126.) Of course, this trait does not distinguish judges from the
countless other appointed officials in the states.

(127.) Though commonly touted by critics, this assertion is
slightly inaccurate. In 1998, one judge was found not to meet the
standards (but he nevertheless was retained). Corallo E-mail, supra note
56.

(128.) Pelander, supra note 51, at 695 (noting that the public did
not retain only two judges over a twenty-four year period).

(129.) That is, most proponents of judicial performance review and
retention elections point to the superiority of merit selection, which
is corroborated by the fact that judges routinely receive high marks
from the Commission on Judicial Performance Review. Though this
proposition may be correct, it does leave something to be desired in
light of the tendency to perpetuate the status quo and the frequency of
human error (no one would think that the Nominating Commissions are
immune to human error). See discussion infra Part III.C. There is
something to be said, however, of judicial performance review's
deterrent effect: Judges know that they frequently are subject to peer
and public review, which thereby consciously and subconsciously affects
their performance for the better. Kenski Interview, supra note 105;
Telephone Interview with Roger Hartley, Professor, University of Arizona in Tucson, Ariz. (June 29, 2006). Perhaps, then, the less fit judges
optimize their performance to avoid public scrutiny and rejection.

(130.) McGregor Interview, supra note 92; see Pelander, supra note
51, at 722. But see Corallo E-mail, supra note 56 (noting that one judge
was found not to meet standards, but voters nevertheless retained him).

(131.) The bad apples are rare. See Pelander, supra note 51, at
718-24. As noted above, the critics believe that, in such a large
judicial system, there must be more judges who are unfit, and judicial
performance review is failing to find them. As one public member of the
Appellate Court Nominating Commission responded, "my answer to that
is quite clear[:] It's different because of the process, the time
and effort we take to screen these people...." Schade Interview,
supra note 94.

(132.) E.g., Dann & Hansen, supra note 65, at 1431-36 (listing
judges in California, Tennessee, and Nebraska ousted, or nearly so, for
unpopular death penalty and abortion decisions, among others).
"Accountability" proponents thus should rest assured that,
with adequate campaigning, they can oust judges on the basis of one or
two unpopular decisions.

(133.) Herrod Interview, supra note 120 (estimating that associated
organization's campaign against retention of two judges
"dropped their retention scores by six to seven percent"). But
see E-mail from Ruth McGregor, C.J., Ariz. Sup. Ct., to Mark Harrison
(Sept. 15, 2006, 1:43 PM) This percentage may be overstated. Arizona
Chief Justice Ruth McGregor's administrative staff carefully
evaluated the scores of the two judges against whom the campaign was
mounted, and concluded that the campaign lowered the retention votes on
these judges by approximately four percent. This evaluation consisted of
examining the past retention scores of the two judges and the relative
difference between their scores and those of other judges on the ballot.

(134.) See Andersen, supra note 101, at 1379 (citing Kevin M.
Esterling, Judicial Accountability the Right Way: Official Performance
Evaluations Help the Electorate As Well As the Bench, 82 JUDICATURE 206,
210 (1999)) (noting "official evaluation information [appears to
have] a positive impact on the electorate in terms of increasing
participation in retention elections and influencing voting
choices").

(135.) Roll, supra note 25, at 855-56.

(136.) Id.; see also discussion supra Part I.A.

(137.) See, e.g., Dann & Hansen, supra note 65, at 1437. It is
somewhat difficult to blame voters for their apathy and low turnout when
the number of judges is so high-it would be the exceptional attorney or
judge who could name all of Arizona's trial and appellate judges
sitting in Maricopa (Phoenix) or Pima (Tucson) Counties. The sheer
numbers in the urban counties make direct democracy that much more
inadequate. The public therefore needs representatives (i.e., the
Commissions) to perform due diligence.

(138.) Interview with Mary Beth Pfister, Member, Comm'n on
Judicial Performance Review, in Phoenix, Ariz. (June 27, 2006)
[hereinafter Pfister Interview]; Lieberman Interview, supra note 123
(noting that only Senator Bill Brotherton responded). Of course,
generally speaking, neither do the public. Eigo, supra note 110, at 50
(referencing remarks of Dr. Margaret Kenski) (noting little-to-no public
turnout at the Commission's meetings). If the legislators truly
wish to help, they should seek to approve more funds for the
"widespread dissemination of [judicial performance review]
results," to fine tune those results, and to educate the public of
the advantages of the merit selection system and the public's
opportunities to participate in it. Andersen, supra note 101, at 1386.

(139.) Andersen, supra note 101, at 1378. The public members of the
Commission add value to the selection and review by (among other things)
placing an emphasis on the judges' community activities. McGregor
Interview, supra note 92.

(140.) Only where the participant answers a particular question on
the survey is it counted. Thus, the totals vary depending on the
particular question on the survey (legal ability, judicial temperament,
integrity, etc.). For Maricopa County, the total number of answers
submitted, for each category of performance, varied from over 7,000
(settlement activities) to over 25,000 (integrity), over a five-month
period. For Pima County, the total number of answers submitted varied
from over 1800 to over 10,000, over a five-month period. See generally
Arizona Commission on Judicial Performance Review,
http://www.azjudges.info/reports/index.cfm (last visited Oct. 18, 2006).

(151.) Herrod Interview, supra note 120 (citing, as an example of
judicial activism, the Arizona Supreme Court's decision in Simat
Corp. v. Ariz. Health Care Cost Containment Sys., 56 P.3d 28 (Ariz.
2002), which held that, under privileges and immunities clause of the
Arizona Constitution, the state could not refuse to pay for abortions
for indigent women whose health was endangered by pregnancy, where it
had already funded abortions for indigent women whose lives were
endangered, or who were victims of rape or incest).

(157.) Id. (noting that arguments in favor of merit selection can
be somewhat "esoteric," and "you have to have a fairly
good sense of basic civics and separation of powers to understand why
the judiciary is not like other branches ... with a little education ...
the advantages of merit selection would seem clear. But in the absence
of that education, [it's] lost on some people.").

(158.) Id.; see also Pfister Interview, supra note 138 (noting that
if the public knew of the Commission's vast amounts of data
collection, it would be "supremely confident" in the system).

(159.) Recent studies "have indicated that voters wish they
had more information about judicial candidates." Dann & Hansen,
supra note 65, at 1437. In Arizona, they do. It is the dissemination of
this information, however, that is the "most daunting task."
Andersen, supra note 101, at 1385.

* Mark Harrison is a member and Sara Greene and Meghan Grabel are
associates at Osborn Maledon, P.A., Phoenix, Arizona. Keith Swisher is
an associate at Osborn Maledon currently on leave to pursue his LL.M. at
Harvard Law School. This Article follows and builds on a presentation at
the Fordham University School of Law's April 7, 2006 Symposium on
Rethinking Judicial Selection: A Critical Appraisal of Appointive
Selection for State Court Judges.

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